Citation Nr: 1123799 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 05-26 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period from January 17, 1997, to February 1, 1998. 2. Entitlement to an effective date prior to February 1, 1998, for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sonnet Gorham, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1999 and July 2001 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal was remanded by the Board in August 2008 for additional development. The Veteran had two Board hearings in this appeal before two different Veterans Law Judges (VLJs). The first hearing was held in April 2008 in Washington, D.C., and the second hearing was held in January 2011 at the New York RO. Transcripts of both hearings are of record. Because two different VLJs held hearings in this appeal, the following decision will be reviewed and signed by a panel of three VLJs, which includes the VLJs who presided over the April 2008 and January 2011 hearings. See 38 C.F.R. § 20.707 (2010). The issue certified to the Board and discussed during the most recent hearing was entitlement to an earlier effective date prior to February 1, 1998, for the award of a TDIU. However, in order to facilitate discussion of this issue, the Board must also address the Veteran's entitlement to an increased rating for PTSD prior to February 1, 1998. Therefore, the appeal has been bifurcated into two separate issues, as reflected on the title page of this decision. FINDINGS OF FACT 1. On January 17, 1997, the Veteran submitted a formal claim for service connection for posttraumatic stress disorder (PTSD). No claims were filed prior to this date. 2. By a May 1999 rating decision, the RO granted service connection, and a 50 percent evaluation, for PTSD, effective from January 17, 1997. The Veteran appealed the disability rating assigned. 3. By a July 2001 rating decision, the RO increased the evaluation of service-connected PTSD to 70 percent and awarded a TDIU, both effective from February 1, 1998. This rating decision did not abrogate the Veteran's appeal of the initial disability rating assigned. 4. For the period from January 17, 1997, to February 1, 1998, the Veteran's PTSD resulted in severe impairment in his social and occupational functioning due to such symptoms as impaired impulse control and unprovoked irritability, difficulty adapting to stressful circumstances (including in a work setting) and inability to establishing and maintaining effective social relationships. 5. As of January 17, 1997, the Veteran's service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. From January 17, 1997, to February 1, 1998, the criteria for an initial rating of 70 percent for the Veteran's PTSD have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). 2. The criteria for an effective date of January 17, 1997, but no earlier, for the award of a TDIU have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to an effective date prior to February 1, 1998, for the award of a TDIU. Specifically, he asserts that he was unemployable as early as 1975, and that, at the very least, his TDIU should be effective from 1989, when he was forced to retire from the Port Authority. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010). The issue on appeal flows from a May 1999 rating decision predating the enactment of the VCAA which established service connection for PTSD, and a July 2001 rating decision which established a TDIU. The Veteran received no notice prior to the May 1999 and July 2001 actions awarding benefits. However, in cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or, as in this case, nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case, as neither the Veteran nor his representative has alleged such prejudice. Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that an appellant claiming entitlement to an earlier effective date is not prejudiced by failure to provide her with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). Here, the Board is awarding the earliest effective date available as a matter of law. Therefore, notice regarding effective date assignments is not required. Accordingly, the duty to notify has been satisfied. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits. The RO has substantially complied with the Board's August 2008 Remand instructions by providing the Veteran with a statement of the case in November 2008. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained, and he has not notified VA of any further evidence to be obtained on his behalf. Additionally, the Veteran provided testimony at the April 2008 and January 2011 Board hearings. In this regard, the Board acknowledges that the Court recently held that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, No. 09-0953, 2011 WL 1486552, at *9-10 (Vet. App. April 20, 2011). To the extent that there may be any deficiency of assistance by failure to provide the Veteran with the opportunity for a hearing before the third member of the panel deciding the appeal, there is no prejudice in proceeding with a decision at this time, as the Board is awarding the earliest effective date available as a matter of law. In light of the complex history of this case, the Board believes that a brief factual background and discussion of its jurisdiction is necessary. The Veteran filed his initial claim for service connection for PTSD on January 17, 1997. A June 1997 rating decision denied his claim, and he perfected an appeal of that decision. The RO subsequently awarded service connection for PTSD in May 1999, assigning a rating of 50 percent effective from January 17, 1997; a temporary total evaluation of 100 percent based on a period of hospitalization from November 29, 1997, to January 31, 1998; and a 50 percent rating beginning February 1, 1998. The Veteran perfected an appeal of the assigned disability rating. In April 2001, while his claim for an increased rating for PTSD was still pending, the Veteran filed a formal claim for a TDIU. A July 2001 rating decision awarded an increased rating of 70 percent for PTSD and a TDIU, both effective from February 1, 1998. Although the July 2001 decision constituted a complete grant of the claim for a TDIU, the matter of entitlement to a disability rating in excess of 50 percent for PTSD prior to February 1, 1998, and in excess of 70 percent thereafter remained pending at that time. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In a February 2003 Report of Contact, a Decision Review Officer notes that the Veteran "was satisfied with granting of 70% for PTSD with IU and was withdrawing his appeal." The Board acknowledges that this statement reflects the Veteran's desire to discontinue his appeal of an increased initial rating for PTSD, thereby rendering the May 1999 rating decision final and prohibiting the Board's adjudication of the instant appeal pursuant to recent case law. See Rudd v. Nicholson, 20 Vet. App. 296 (2006)(holding that where a rating decision which established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on clear and unmistakable error). However, it does not appear that the Veteran understood the consequences of his agreeing to withdraw the appeal of the increased rating issue in February 2003, in that it would prohibit a future earlier effective date claim. Specifically, in October 2003, just eight months following the above-cited Report of Contact, the Veteran submitted a statement requesting an earlier effective date (presumably for both the award of service connection for PTSD and a TDIU). Additionally, during his Board hearings, the Veteran argued that his representative had filed a notice of disagreement with the effective date of his TDIU award in July 2001, and that an effective date was warranted as of the date of his retirement in 1989. See the April 2008 Board Hearing Transcript (Tr.) at 7; see also the January 2011 Board Hearing Tr. at 9. Finally, although the Board noted in its April 2008 decision that the matter of entitlement to a disability rating in excess of 50 percent was withdrawn during the April 2008 hearing, that issue was never formally withdrawn from appellate status. Therefore, in light of the Veteran's apparent confusion over the matter and lack of proper withdrawal of the issue by the Board, and affording the Veteran the benefit of the doubt, the Board finds that the appeal of the initial disability rating for PTSD remains in appellate status. The Court recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, with the matter of entitlement to an initial rating in excess of 50 percent for PTSD from January 17, 1997, to February 1, 1998, still in appellate status as described above, there exists the possibility of awarding a TDIU during this period, and the Board can reach the merits of the earlier effective date claim for a TDIU without violating Rudd. The Veteran's TDIU was established as part of the initial adjudication of his original claim for service connection for PTSD. Unless otherwise specified, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). See also Rice v. Shinseki, supra (concluding that the Board erred in analyzing an earlier effective date for a TDIU under 38 C.F.R. § 3.400(o) when an initial disability rating was on appeal). A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16 (2010). The Veteran's sole service-connected disability is PTSD, which, as described above, is rated 50 percent disabling from January 17, 1997, to February 1, 1998, and 70 percent thereafter. Given these ratings, the Veteran would not meet the criteria for a schedular TDIU for the period from January 17, 1997, to February 1, 1998. See id. However, the Board finds that the evidence during this period more closely approximates the criteria for a 70 percent rating. The rating criteria provide that a 70 percent rating be granted for PTSD with occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting), and; inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). Here, the evidence for the period from January 17, 1997, to February 1, 1998, reflects severe impairment in social and occupational functioning due to PTSD. Specifically, an April 1996 Mental Residual Functional Capacity Assessment categorizes the Veteran as "markedly limited" (e.g., effectively precluded from performing the activity in a meaningful manner) in his abilities to interact appropriately with others, to maintain socially appropriate standards of behavior, and to adhere to the basic standards of neatness and cleanliness. Additionally, VA outpatient records dated in December 1996 and April 1997 describe two incidents where the Veteran lost his temper, once with his family members and once during a group therapy session. Moreover, during the January 1997 VA examination, the Veteran described "frequent death wishes" and outbursts of anger. He reported that he had no friends and experienced hypervigilance and frequent panic attacks with palpitations. The examiner assigned a Global Assessment of Functioning (GAF) score of 31, which is indicative of major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Furthermore, an October 1997 VA Comprehensive Treatment Plan notes that the Veteran "lacks close friends or social network and is alienated from family which increases stress," and October 1997 VA outpatient records describe the Veteran having "explosive anger episodes" and "constant conflict with others." The Veteran was eventually hospitalized for his PTSD symptoms from November 1997 to January 1998, further demonstrating the severity of his disability during this period. Such findings are congruent with a rating of 70 percent for PTSD for the period from January 17, 1997, to February 1, 1998. The Board need not address the Veteran's entitlement to a schedular 100 percent rating for PTSD, as the evidence of record allows for the award of a TDIU from the date of his initial claim as described below, and a 100 percent rating has essentially been in effect since the Veteran's November 1997 hospitalization. As a consequence of the award of an increased rating of 70 percent for PTSD from January 17, 1997, to February 1, 1998, the Veteran is eligible for a schedular TDIU for this period. See 38 C.F.R. § 4.16 (2010). In this case, the record demonstrates that the Veteran's PTSD rendered him unemployable as early as April 1996. Specifically, the above-cited April 1996 Mental Residual Functional Capacity Assessment describes the Veteran as "markedly limited" in his most categories of occupational functioning, including his ability to maintain attention and concentration, perform activities within a schedule, complete a normal work week, sustain routine without supervision, work with others, and adapt to change. These findings are congruent with the January 1997 VA examiner's conclusion that the Veteran has severe impairment of industrial adaptability due to his service-connected PTSD, and the October 1997 VA Functional Assessment which describes the Veteran as unemployable. Therefore, with the evidence of record establishing unemployability prior to his initial claim for benefits, the appropriate effective date for the award of a TDIU, and earliest effective date available as a matter of law, is January 17, 1997. See 38 C.F.R. § 3.400 (2010). Referable to the Veteran's contention that the effective date of his TDIU should be in 1989, because that was when he was forced to retire from the Port Authority due to PTSD symptoms, the Board notes that even assuming that to be true, the effective date could be no earlier than the date of receipt of his original claim for service connection. Here, the Veteran submitted his claim for service connection for PTSD on January 17, 1997. The record does not reflect that he filed a claim prior to this time, and he does not contend otherwise. See the July 2010 Board Hearing Tr. at 11; see also the April 2008 Board Hearing Tr. at 5-6. Thus, his argument lacks legal merit. See generally Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER A 70 percent rating for PTSD is granted for the period from January 17, 1997, to February 1, 1998, subject to regulations applicable to the payment of monetary benefits. An effective date of January 17, 1997, for the award of a TDIU is granted. BARBARA B. COPELAND STEVEN L. KELLER Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs